Coronavirus: A Case for Liberating Prisoners

Every person should be presumed to be innocent until proven guilty beyond the shadow of a doubt. However, 48,008 prisoners under trial in Pakistan have been rotting behind bars for years and are presently exposed to the COVID-19 epidemic, even though their innocence or guilt is yet to be ascertained. There have been many times when the prosecution has failed to prove charges even after the accused has completed the term of sentence provided for an offence, or died. According to “Blackstone’s ratio” regarding criminal law,

“It is better that ten guilty persons escape than that one innocent suffer.”

The COVID-19 catastrophe calls for self-quarantine, isolation and social distancing for the subjects of all 198 affected countries. Hostels have been evicted and universities turned into quarantine-zones to accommodate the precipitated. However, during this time of a prescribed and enforced reasonable distance, prisons in Pakistan are still overcrowded (accommodating 77,275 inmates, including juveniles, women, senior citizens and those with weak health), instead of operating at their lawful capacity of 57,742, which make them incubators for diseases.

Rimmel Mohydin, South Asia Campaigner for Amnesty International recently said,

“Prisons in Pakistan face massive overcrowding, overruling the possibility of social distancing, with the potential for a large outbreak. Hygiene supplies remain limited as does healthcare. Pre-trial detainees are taken to courts, where they may be exposed to the virus. Pakistani authorities should seriously consider reducing the prison population.”

“Physical distancing and self-isolation in such conditions are practically impossible… Authorities should look for ways to release people in detention who are especially vulnerable to the disease, such as those who are elderly or who have health issues… They should also consider releasing low-risk offenders… Now, more than ever, governments should release every person detained without sufficient legal basis, including political prisoners and others detained simply for expressing critical or dissenting views…”

Due to the lamentable conditions of prisons and the economic burden put on states because of the recent health emergency, states have freed prisoners under trial and pardoned those convicted of minor offences having sentences up to 3, 5 and 7 years varying per country. Hundreds of thousands of inmates have been freed by the United States, Canada, Iran, Ethiopia, India, China, UAE and others combined.

In Pakistan, the Islamabad High Court and Sindh High Court have released 408 and 829 prisoners respectively. Other provinces are either considering it on their own motion or through writ petitions filed by human rights activists and organizations. A writ petition titled Saifullah Muhib Kakakhel v Govt of Khyber Pakhtunkhwa has been fixed for 31st March 2020 and is expected to sustain the decisions of the High Courts of Sindh and Islamabad under the principle of stare decisis. An appeal has been moved to the Supreme Court of Pakistan against the judgment of liberation of Islamabad High Court which had been heard by a 5-member bench headed by the Chief Justice himself on 30th March 2020 and had suspended the decisions and maintained the status quo till the final decision of the appeal.

People who have been deprived of their liberty through due process of law still do not cease to be human and their other rights and protections to the exclusion of liberty remain intact. Liberty is a right enshrined in Article 15 of the Constitution of Pakistan and Article 9 of the International Covenant on Civil and Political Rights (ICCPR). In the case of Muhammad Sabtain Khan v National Accountability Bureau (PLD 2020 Lahore 191), the Lahore High Court held that,

“With guarantees provided under Article 3, 4, 9, 10-A of the constitution, it will be quite contrary to the concept of personal liberty that a person should be punished without conviction.”

“A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.”

Due to these rights enshrined in local laws and principles given by international law, contemporary criminal jurisprudence provides that the ‘granting of bail is a rule and refusal is an exception’.

Nevertheless, the most important right applicable here is that of life and its security, which too has been declared in the Universal Declaration of Human Rights and provided for not only within our own Constitution but also under the International Covenant on Civil and Political Rights(ICCPR). We are still not able to comply with the standards put forth by the United Nations Standard Minimum Rulesfor the Treatment of Prisoners as the current lack of health security in the aftermath of an epidemic threatens prisoners’ lives. It calls for the suspension of convictions and granting of bail for inmates under trail who should legally be presumed innocent. Article 1 of the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also discourages punishment towards suspected criminals.

The protection of liberty of persons has evolved with time, along with the concept of bail which traces back to 399 BC when Plato tried to create a bond for the release of Socrates. It also finds base in Magna Carta Libertatum 1215(Great Charter of Liberty) between King John and the English barons, which resulted in the birth of the writ of habeas corpus (produce the body) as well.

The law of bail was emphasized upon in the case of Subhash Kumar Sharma (AIR 1991 SC 420) where the Supreme Court of India held the following:

“Bail is a rule and committal to jail is an exception warranted in the most extraordinary circumstances.”

This case gets referred to in many judgments in the courts of Pakistan as well, however, many are still denied bail including juveniles, the elderly, women and those charged for petty matters punishable with a fine or short-term imprisonment. Even those who require immediate medical attention are denied bail, except in the rarest of cases such as Mian Muhammad Nawaz Sharif’s case (2020 PCr.LJ 213 Islamabad) where a convict had been granted bail to protect his life. If we follow this judgment alone on grounds of “equality” under Article 25 of the Constitution and the principle of stare decisis, we can set free 5,166 prisoners with health issues throughout Pakistan.

Since the issue of bail involves liberty, justice, public safety, burden on the public treasury and health emergencies in the shape of an epidemic, one insists that a more evolved jurisprudence surrounding bail should be applicable to all those whose lives and liberties are at stake and not just towards the privileged convicts/accused.

Equal and inalienable rights of all members of the human family are considered to be the foundation for freedom, justice and peace in the world. These rights find their basis in the inherent dignity of the human person being recognized by all religions and international and local laws of the world.

To protect the life and liberty of prisoners in light of the global COVID-19 outbreak and dispense hasty justice to jam-packed prisons, the government and relevant quarters should take the following measures:

Grant bail to prisoners under trial.

Pardon those convicted/accused of minor offences, through Article 45 of the Constitution of Pakistan 1973 (presidential pardon).

Suspend sentences of all those sentenced to a punishment of 5 years or less.

Discharge convicts under the Probation of Offenders Ordinance 1960.

Give remission to all those with nearing release dates.

Grant bail to those with health conditions such as hepatitis, HIV, asthma, kidney issues and other medical and mental conditions that require urgent attention.

Grant bail to juveniles and women who have already been given relaxation under CrPC.

Discharge those who are unable to pay fine and have been imprisoned in lieu of paying fine.

Liberate on personal surety those who do not otherwise have sureties and are undergoing imprisonment in lieu of it.

In rare cases like the Central Park Five 1989, juveniles had been wrongly sentenced for rape in New York City and were later paid $41 million in damages in 2014 for the agony that they suffered. Pakistan is a country of limited resources and may not be able to do the same, but economic handicaps and administrative loopholes should still not risk the lives of thousands of prisoners who can otherwise be protected. Remember, prisoners are not children of a lesser god or any less human than the rest of us.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Author: Nouman Kakakhel

The writer is a human rights activist and lawyer based in Peshawar and Islamabad and serves as a Partner at Kakakhel Law Associates. He has studied Public Policy from the University of Massachusetts and Corporate Law from Harvard University. He tweets @NoumanMuhib and can be reached at [email protected]